I read a remarkable article today over at SCOTUSblog today by Yale Law Professor Abbe R Gluck, The Grant in King — Obamacare Subsidies as Textualism’s Big Test. She is a big advocate of textualism — the theory that judges should base the decisions only on the text of the law. As I discussed in, Originalism, Textualism, and Politics on the Supreme Court, this is usually misidentified as “originalism.” So textualism is the theory that supposedly animates such conservative judicial titans as Scalia and Thomas.
According to Gluck, the case in King v Burwell, which threatens to destroy Obamacare, is the ultimate test of textualism. If Scalia and company find for the plaintiffs, they will do so because they don’t like Obamacare and it will “threaten all that textualists have accomplished.” She argued that the case is not about what the law says versus what the intent of the legislators was — the critical issue in textualism. Rather it is all about what the law itself says. In fact, the plaintiffs can only make their case by resorting to non-textual arguments about what Congress did or did not mean when it wrote the law.
She further noted that Scalia himself recently argued that “the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” And in another case he argued that the court should read legislation such that it “does least violence to the text.” So, is the “liberal” reading of the text this time the “textual” reading? It would seem so.
The critical clause that the plaintiffs have latched onto is in section 1401 that states that subsidies will be based upon the premiums found through the “Exchange established by the State under 1311.” Section 1311 gives the law about the state exchanges. But that isn’t the end of it:
It seems pretty straight forward. The plaintiff’s case is dependent upon saying, “We know that Congress meant to not provide these subsidies to the states because they wanted to encourage the states to set up their own exchanges.” But this isn’t in the text of the law. I would add that the evidence of this being the case is pretty weak anyway. The interesting thing in this case is that it shows that the conservative efforts to destroy Obamacare has a scattershot approach. I doubt very seriously that the people at the Cato Institute who came up with this idea thought very much of it. But the idea is just to throw everything at the courts and hope something sticks. The last time it did, it was, “Could the government force people to eat broccoli?!”
Gluck seems a little freaked out about this case. I can’t speak for her, but I assume she’s thinking the same thing that I am: the conservative textualists don’t much believe in the theory. It has always been a simple justification for coming to their conservative (neolithic) decisions. And now that a case comes up where the choice is either to apply the textualism they supposedly believe in or to destroy a law they don’t like for other reasons, they will simply abandon textualism.
Of course, here we are primarily talking about the two justices: Scalia and Thomas. Kennedy and Alito will vote for the plaintiffs just because they hate the law. That leaves Roberts, who voted to uphold the law in National Federation of Independent Business v Sebelius. Wouldn’t he vote to uphold it again? Probably not. As Bill Gardner noted earlier today, this case allows the conservative justices to greatly harm the law (very likely fatally) without killing it outright. It doesn’t look good.
What’s sad about all this is that it shows what a sham the Supreme Court is. At this point, the conservatives on the court are as partisan as any member of Congress. I fully expect to see Scalia and Thomas cast aside all their high ideals for a chance to strike a blow against Obama’s most important piece of legislation. But it won’t matter. Anyone who is not already convinced that they are partisan hacks will never see what’s really going on.